Assignment
The internet is one of the most significant element of modern era. It has shaped how communication, thinking, and problem solving is done in the last couple of decades. There are various industries and fields that have been positively impacted by the growth of the internet.
It is important to note that in the beginning, the internet was not viewed as a significant part of daily life as it is today. In fact, some of the biggest critics of the amount of freedom the internet allows today, legislators, were the ones who shaped the industry. This is according to Kosseff (2019) who argues that two legislators, namely Chris Cox, a republican and Ron Wyden, a democrat promoted the nature of the internet as it is today. This tis due to the twenty-six words they used to describe the use of the internet under Section 230 of the Communications Act.
This essay looks into the different aspects and implications of Section 230, particularly the mentioned twenty-six words, on the growth and use of the internet. First, the essay looks into the legal and political significance of the clause. For example, one of the legal the clause has been debated by congress over the last couple of decades due to the fact that it protects large IT firms from any harm that might emanate from content that is posted by their users or other third parties.
Additionally, the essay looks at the relationship between laws such as the First Amendment, Libel and Copyright and Section 230 of the Communications Act. The essay suggests that whereas there are several limitations to Section 230 of the Communications Act, congress should not repel it but rather, modify it to hold users and interactive digital platform owners more accountable for content shared on these online platforms.
Legal and Political Significance of Section 230 of the Communications Act
Legal Significance
There are several legal and political significances of Section 230 of the Communications Act. First, for legal, the Section means that digital platform providers cannot be held liable for comments, videos and images that other people post on their digital sites (Goodman & Whittington, 2019). An example can be given to simplify the legislation. When a Facebook user updates a disturbing video or post, the courts, or any other person, cannot hold Mark Zuckerberg accountable for that specific post or image.
As mentioned, Kosseff (2019) strongly believes that this clause, which he refers to the twenty-six words, created the internet. One of the implications of this legal significance is that it protects digital platform providers. Ideally, there is no way they can manage all the data that is shared on their platforms. Additionally, due to the diversity of the internet, the providers were not, initially, able to fully monitor individual activities.
Today, this has changed as algorithms have been created to identify different types of content that users see on these platforms. It is important to note that other users who share or even like content shared by third parties can also not be held accountable for that same content. The said algorithms now advice users on the type of content they are about to see. Additionally, the user has the right to watch the content or skip it entirely. It is crucial to point out that the users can also report content they find disturbing and inappropriate. However, all these actions are at a voluntary basis and they cannot be held liable for either reporting or watching the videos or other forms of content.
A second legal implication of Section 230 is that courts have to use a three ponged rule to determine whether a person or digital platform is liable for information shared on their platforms (Gillespie, 2018). The first pong is that the person or entity involve must be a user or a digital platform provider. Therefore, any user of the digital platforms, whether it is a website or a social media platform can be taken to court if he or she is accused of posting indecent and inappropriate content.
Gillespie (2018) notes that there are several cases that have been presented in court over the issue in the last decade. The second pong used in any court case involving Section 230 is that the action suggested by the person suing another for content shared online must view the defendant as the publisher and owner of the said content (Gillespie, 2018). This ties closely with the first suggested legal issue of Section 230 as it also means that anybody sharing or liking content will not be considered as the author, speaker or publisher of the content.
The last pong used is that the defendant must prove that the content was actually provided by another person or entity (Gillespie, 2018). It is arguable that the nature of the internet makes this easy to prove as content that is liked or shared is often also tied back to the original publisher or information provider. Having said so, it is important to note that users also often quote words and content they have heard or seen elsewhere (non-digital sources).
Such instances are harder to prove and the defendant can even be charged with defamation if they cannot prove that they are not the source of the content uploaded. Kosseff argues that when Section 230 was being incorporated into the Communications Act, congress did not anticipate that it would make up the internet as it is today. Indeed, one can argue that the growth of the internet has been supported by this clause due to the fact that it protects both the user and the provider.
Political Significance
There have been significance political debates on the relevance of section 230 of the Communications Act. First, politicians have used the debates to either support their political bids or oppose the opinions and stand of their political rivals. Babe (2018) explains that there are politicians who seek funding from some of the digital providers in order to talk positively about Section 230 when in office. It is important to note that the section fully covers and protects the digital providers.
Therefore, any political goodwill and support they will receive ensures that the section is not amended or removed. Interactive digital platforms such as Facebook have on several occasions been requested to appear before congress, or a part of congress, and answer some questions based on content and even data policies. Such discussions require that the large IT and digital communication firms get support in order to have an easier hearing.
Important to note, in August 2019, politicians Frank Pallone and Greg Walden from New Jersey and Oregon respectively, argued that the US government’s plan of using a similar version of the section in a trading deal with Mexico and Canada was unfounded (E&C Republicans, 2019).
This debate has been pushed mainly by conservatives as opposed to democrats. One can argue that the Section allows users and the involved firms too much freedom and little accountability is used to keep everyone in check. It can be argued that many republicans would rather such freedom be curbed in order to protect some of the values they deem important for the growth and development of the nation. It is equally important to note that there are debates that Democrats fully support Section 230 due to the funding they receive from the firms involved (Babe, 2018).
On the same note, one of the most contentious issues that has been debated on due to the freedom the firms enjoy is the growth of pornography online. Arguably., pornographic materials are the most shared online for both adults and children (Gillespie, 2018). One implication of Section 230 is that users can freely share these materials on other platforms but still not be held accountable as they are not the originators of the videos or pornographic materials. Interestingly, even the pornographic website owners cannot be arrested or charged as they do not upload the content themselves but rather, third parties create accounts and upload the content. Due to the fact that some politicians allegedly uphold religious morals in their debates, there have been political calls for the section to be amended or removed.
Notably, political regions that are against Section 230, which are mainly republican, will support legislators that are very vocal towards the amending or removing of the law. However, it is important to note that some politicians base their dislike for Section 230 on personal values that have shaped their political careers. Additionally, republicans have expressed complaints that due to the fact they are not supportive of Section 230, their materials are censored online compared to those of democrats.
This allegation has further broadened the divide between democrats and republicans in agreeing on whether Section 230 should be removed, amended or left the way it is. Currently, although there have been debates around it, the government has not been clear on the way forward and the Section remains an integral part of the Communications Act.
Relationship Between Section 230 to Class Topics
First Amendment
There are several issues that have to be discussed when talking about Section 230 and the First Amendment. One of the highly debated concerns is the use of hate speech on online platforms. This has been a topic of interest due to the increase in mass shootings in the US. Gillespie (2018) notes that there have been several calls by legislators that IT firms and other interactive digital platform providers bar any form of hate speech from their platforms and the internet in general.
However, as it is arguable that these companies have been unable to do so as hate speech is protected under the First Amendment right. Kosseff (2019) argues that the story of Eleazar Smith’s bookstore set precedence for the debate today. This is because the outcome of viewing or listening to hate speech cannot be directly linked to the intention of the intermediary (in Kosseff’s (2019) case, the bookstore was not liable for the action of the person who bought and read the erotica).
The fact that the First Amendment protects hate speech means that the companies affected and regulated by Section 230 have to first adhere to the First Amendment right before any other issue that come abought due to Section 230 of the Communications Act. It is for this reason that the IT firms were unable to ban all forms of hate speech from their sites. However, as mentioned, especially on social media platforms, individuals have the right to click “yes” to watching a video or read content that they have already been informed might be sensitive. Thus, further liability is removed from the intermediary (the interact digital platform provider).
Libel
Libel can be defined as a term in law that comprises of false statements that have been made about someone that are damaging to that person’s reputation (Gillespie, 2018). Again, the nature of the internet allows users to create proxy accounts that they can use to damage the reputation of others.
This can be done through comments, images and even videos. The nature of libel allows the person whose reputation has been damaged to sue the publisher of that information on any platform, including digital platforms. However, as Kosseff (2019) notes, the dummy accounts cannot be linked to an actual person and this makes suing difficult. It might be argued that it would be ideal for the plaintiff to sue the company or digital platform involved but they are then protected by Section 230 of the Communications Act.
Kosseff (2019) gives the example of a lawsuit by the North Dakota section of the Farmers Educational and Cooperative Union that sought to sue a local broadcaster, WDAY for airing a speech that allegedly harmed their reputation. The case was thrown out due to the fact that WDAY aired the speech as federal communications law required that the speech be aired yet the company was still protected under Section 230 and could not be sued for either airing or not censoring the speech (Kosseff, 2019).
There have been arguments that the issue of defamation and Section 230 of the Communications Act should be an ethical one. This was supported by one judge in the case’s appeal panel, Judge Frankfurt, who argued that there was some unfairness to the plaintiff over the issue (Kosseff, 2019).
Copyright and Trademark
Kosseff (2019) explains the case of Rothweiler, who was arrested in Eleazar’s Bookstore for selling an erotic book to a customer. The arrest of Rothweiler was necessitated by a municipal law that stated that no one should be in possession of obscene or indecent writing in any business place that also served other magazines, soft drinks, educational books and postcards. Using this Los Angeles Municipal Code, Rothweiler was indeed guilty and should have been legally charged. However, there are two other laws that had to be considered during the case. The first was the First Amendment that allowed freedom of speech. This law mainly affected the publisher of the book. Due to the fact that the publisher could not be sued, the plaintiff sought to sue Eleazar’s Bookstore owners and the attendant that had sold the book.
The main argument that was used initially was that the bookstore owner could not read all the materials that were sold and solely determine whether they were obscene. The initial court believed that not taking action against the owners of the bookstore would set precedent for others to prove that materials sold in bookstores were either obscene or not. The case led to a debate on whether due to the fact that copyright law protected the book, it was to be considered property and not a form of speech (Kosseff, 2019). If this was the case, then the First Amendment right did not apply in the case and the bookstore owners were in fact liable for selling the book as per the municipal code.
One can argue that the premise that copyright law ensures property and not speech is unfounded. This is due to the fact that the buyer of the so defined “property” will read the content of the book, or any other material as part of the First Amendment. Additionally, it is arguable that the issue of copyright law should not by any means suggest that the publishing house should not be held accountable for the contents of the book.
In book publishing, it is common to find publishing houses purchasing the rights to publish the books. By doing so, these publishing houses are violating Section 230 and can be held liable for the content shared through the books or any other format used. Kosseff (2019) explains that the publishing house involved in the Eleazar Bookstore case gave a notice at the beginning of the book that it was a work of fiction and did not hold the opinions or expressions of the publishing house. Due to this, the publishing house could also not be sued as it was protected under Section 230 of the Communications Act.
Repelling or Modifying Section 230 by Congress
The importance of Section 230 of the Communications Act cannot be overstated. Indeed, one of the most significant implications of the section is that it led to the growth of the internet. However, it is also important as it protects innocent users and platform providers from malicious court cases. The magnitude and size of the internet makes it impossible for users and providers to monitor all data shared within the ideal shortest time possible. It is arguable that any content shared online can be seen by hundreds of people within the first second after uploading. Thus, it is not advisable for congress to repel Section 230 of the Communications Act. Ideally, the section can be modified to include 3 main elements namely, liability for interactive digital platform owners, ability to censor, and user liability if they choose to share.
Liability for Interactive Digital Platform Owners
One of the main arguments currently is that Section 230 fully protects interactive digital platform owners from any liability. Initially, it would have seemed unfair to accuse and even prosecute these owners based on what other people write on their platforms.
However, today, there are algorithms being used to monitor each interaction done online in the different platforms. This innovation has been highly customized in the social media platforms as compared to websites. The same, however, should be made mandatory to all online platform providers so that they are able to flag any indecent content that is being shared on their platforms. These algorithms do not have to be monitored at all times as they are run by the software.
Including this liability to Section 230 of the Communications Act will also ensure that the owners are keen on the ease of opening up accounts on their platforms. Whereas dummy accounts have been useful in the past to ensure the protection of the identity of whistle blowers and other people who might be sharing sensitive yet highly useful information, there is a need to also limit the ease of anyone opening an account. Notably, a significant percentage of indecent content that is shared online is done through fake and dummy accounts. Making it harder for people to open these accounts will ensure safer and better digital spaces.
In the event that personal details are requested, and the reason for the account creation is included in the sign up forms, it is important for the platform provider to also secure these details. Such data collection is already protected by several data laws. However, it is important that Section 230 also mention the need to protect the personal details of dummy accounts unless these accounts have violated any other law. Such a premise will also ensure that people can be tracked and held accountable for their actions.
Ability to Censor
Additionally, the law should be modified to also explicitly give the platform providers ability to censor. Currently, there are platforms that censor the information that is posted on their sites by their users or any other third party. For example, Facebook allows people to choose whether to watch content that their algorithm has identified as explicit. Until the user agrees to watch the content, it will be censored and hidden to ensure no violations are recorded.
It is important to note that using Kosseff’s (2019) arguments, an interactive digital platform provider can be sued to editing a video or any other content that has been posted by a user or third party as they are protected by the First Amendment. To resolve this, Facebook does not edit the information but rather blocks it in its entirety. This is further enhanced by the fact that the company gives a disclaimer that it reserves the right to block information posted so any user who signs up and agrees to the terms cannot sue the company despite the provision in the First Amendment.
Ideally, the ability to censor should specifically bar interactive digital platform providers from editing or cutting out parts of the content shared. This is important as it ensures that the platform does not create its own information, of which it will be liable for if it were taken to court. It is important to note that the ability to censor should also be implemented in content that has been shared by different users.
Currently, all social media platforms have a button for sharing what a user has posted. Ideally, even this information should be censored to other people who are not linked to the original person who shared the information even if that original user is not the author or speaker of the content. Arguably, this ability will also ensure that the service providers are protected but can also be held accountable for any indecent information on their platform. Indeed, it will ensure accountability for both the user and the service provider.
User Liability if They Choose to Share
It is also arguable that Section 230 should include user liability is the user decides to share the indecent content Arguably, this should only be possible if the user has been informed that the content they are about to watch can be considered explicit, thus, they are liable if they decide to share such content with others. One limitation of this suggestion is that it goes against the nature of the internet, especially social media platforms such as Twitter and Instagram.
Notably, when users like or even comment on posts on many social media platforms, their friends circle also gets access to the liked content and the comment that the user left on the site. It is this interlinkage that has made social media platforms that more popular over the decades. Whereas the suggestion on user liability should be implemented for everyone who interacts with the explicit content, other comments might be actions informing others that the content is disturbing.
Currently, some sites allow users to report an issue in regards to content shared instead of liking, disliking, or commenting on the individual posts. The user is asked to state why he or she is reporting the issue and makes a selection among the given suggestions.
In some sites, people can report an account as opposed to just a post. It is important to note that despite the fact that many of these issues are protected by Section 230 of the Communications Act, interactive digital platform providers have become more cautious of what their users post online. It is arguable that the clause should also consider factors such as hacking. There have been cases of people hacking accounts and using them to share information. Thus, the general recommendation is that the twenty-six words should be elaborated and made longer to ensure it caters for the internet as it is today, not as it was when the twenty-six words were initially drafted.
Conclusion
In conclusion, Section 230 of the Communications Act is relevant today more than ever. One of significances of the section is that it protects users and interactive digital platform providers from being harassed due to content uploaded and shared with other third parties. This is important due to the nature of the internet. It is easy for people from different parts of the world to post and comment on platforms they desire without the consent of the owners of these platforms. Whereas the First Amendment gives these third parties the right to say what they want, there actions might lead to defamation and even entice violence. Section 230 of the Communications Act works to protect the providers and any other users who are not defined as speakers or owners of the shared content.
Despite the importance of the law, it is suggestable that some modifications should be included to give platform owners and their users more accountability over the content they share. For instance, the law can be amended to also include the fact that platform owners should fully block or censor any content that contains indecent material. Currently, platform owners are not allowed to edit content uploaded by third parties that by doing so, they will be infringing on the third party’s First Amendment right. Issues of libel and copy right also have to be considered when discussing the amendments to Section 230 of the Communications Act.
References
Babe, E. R. (2018). Communication and the transformation of economics: Essays in information, public policy and political economy. New York, NY: Routledge
E&C Republicans. (2019). Letter to USTR Lighthizer regarding the inclusion of Article 19.17 in the USMCA, August 6, 2019. Web.
Goodman, E. P., & Whittington, R. (2019). Section 230 of the Communications Decency Act and the Future of Online Speech. Rutgers Law School Research Paper, 1-14.
Gillespie, T. (2018). Platforms are not intermediaries. Georgetown Law Technology Review, 1(2.2), 198-216.
Kosseff, J. (2019). The twenty-six words that created the internet. London, UK: Cornell University Press.